Excerpt: - - the law with regard to the powers of an appellate court to review the evidence and to reach a conclusion of fact is well settled. all the same, their lordships have stated that where the inferior court rejects or accepts the testimony of witnesses, not because it considers the witnesses untrustworthy or untruthful but on an examination of the probabilities involved in the case, the appellate court is in as good a position as the original court in assessing the value of the evidence. 9. bearing in mind the law on the subject that we are not merely to set out our own opinion against the opinion of the trial court and that we can only examine the evidence in the light of the probabilities if the evidence has been so examined by the inferior court, we are satisfied that the decision.....m. hidayatullah, c.j.1. this appeal has been filed by chakrapani shukla, who was the returned candidate from the bhatapara constituency no. 164 for the madhya pradesh legislative assembly in the recent elections. it is directed against two of his competitors. chandoo son of sahadeo and surya prasad mishra, the election petition was moved by the respondents who had also joined two of the other contesting candidates bishoha and churahi, but who were discharged by the election tribunal. bishoha and churahi are no longer parties to this proceeding, and indeed the matter is not one in which it was necessary to join them under section 82 of the representation of the people act, 1951.2. at the election five persons had filed theirnomination papers, but four of them alone contestedthe election......

Judgment:

M. Hidayatullah, C.J.

1. This appeal has been filed by Chakrapani Shukla, who was the returned candidate from the Bhatapara constituency No. 164 for the Madhya Pradesh Legislative Assembly in the recent elections. It is directed against two of his competitors. Chandoo son of Sahadeo and Surya Prasad Mishra, The election petition was moved by the respondents who had also joined two of the other contesting candidates Bishoha and Churahi, but who were discharged by the Election Tribunal. Bishoha and Churahi are no longer parties to this proceeding, and indeed the matter is not one in which it was necessary to join them under Section 82 of the Representation of the People Act, 1951.

2. At the election five persons had filed theirnomination papers, but four of them alone contestedthe election. The first respondent Chandoo wasdeclared to have retired from the contest, and it ishis retirement which was the subject-matter of enquiry in the election petition. The votes secured bythe respective candidates were as follows:

Appellant 9,900Surya Prasad 6,900Sishoha 1,700Churahi 500

3. Chandoo's boxes bearing the symbol 'cycle' were not placed at the polling centres because of a notice of retirement purporting to be signed and presented by him on 22-2-1957. The main contention in the election petition was that Chandoo had not withdrawn from the contest and the notice of retirement was a forged document presented by someone personating for him. The Tribunal held that the notice of retirement was not given by Chandoo, the candidate, and therefore it amounted to an improper rejection of the nomination.

It further held that the result of the election in so far as the returned candidate was concerned was materially affected inasmuch as Chandoo was wrongfully kept out from the election. In the result, the Election Tribunal allowed the election petition and declared the election of the appellant to be void. We are required in this appeal to decide mainly the question whether the conclusion of the Election Tribunal on this part of the case was correct.

Incidentally, it was also held by the Election Tribunal that since the Assistant Returning Officer did not send copies of the notice of retirement to the other candidates and did not publish it as required by the rules, there were irregularities which had affected the result of the election in so far as the returned candidate was concerned. The Tribunal also held one other point against the returned candidate, viz. that notice of retirement even if it purported to be by Chandoo was filed later than 10 days prior to the date of the poll. We shall deal with these two matters also in this order.

4. The facts of the case are as follows: As we have already pointed out, there were five candidates for the single seat. Chakrapani Shukla, the returned candidate, was the nominee of the Congress Party, while Surya Prasad, the second respondent in this appeal, was sponsored by the Prajja Socialist Party. Chandoo, Bishoha, and Churahi were three Satnamis, who were contesting the election independently. It appears that in this area there is quite a large population of Satnarnis and it seems that these persons were hopeful of getting elected on the support of their caste people.

Be that as it may, the nomination papers were filed on 29-1-1957 and were scrutinized on 1-2-1957. At the scrutiny of the nomination papers objections were raised against the candidature of Chakrapani Shukla on the ground that he held a contract for execution of works on behalf of the Janapada. That part of the case was not pressed before us, even though the learned counsel for the respondent filed a memorandum of cross-objection and also argued on some other points in support of the conclusion of the Tribunal.

The cross-objection which was filed was, however, abandoned, and we need not therefore refer to it, though we shall refer to some of the arguments in support of the conclusion of the Tribunal advanced by the learned counsel for the respondent for our consideration. Incidentally it may be mentioned that the cross-objection was not accompanied by the security which is payable for an appeal, and on that ground it cannot be treated as validly presented under the Act.

5. In the election that ensued all parties were canvassing, at least up to 22-2-1957. On that date a notice of retirement in form 12 was filed before Shri Mahajan, the Assistant Returning Officer, and was accepted by him. He caused the name of Chandoo, who purported to have filed that notice of retirement, to be excluded from the list of contesting candidates, and on his information the boxes of Chandoo were not placed in the polling booths.

Chandoo appears to have raised a protest on 4-3-1957 (the date of polling) that his boxes were illegally excluded and he averred that he had not filed the notice of retirement and that he was a contesting candidate. Numerous allegations were made in the election petition how the notice of retirement came to be executed and filed before Shri Mahajan, and the Tribunal framed many issues on the subject. Some of the issues were decided in favour of the appellant by the Tribunal, but most of the issues vital to this allegation were held against him, with the result that his election was declared void.

6. In the election petition Chandoo said that he did not know till 3 March that a notice of retirement purporting to be signed by him had been lodged before the Assistant Returning Officer. On the next day he appeared before the Sub-Divisional Officer and made a statement (Ex. P-l) in which he stated that he had not wididrawn from the contest

During the interval between 22 February and 4th March 1957 Chandoo seems to have done nothing because, as he stated, he was in the interior, Chandoo alleged in his petition, in which Surya Prasad joined, that Chakrapani Shukla got the notice of retirement executed through his father's sister's son by name Umashankar Bajpai and lodged with the Assistant Returning Officer.

The suggestion of the respondent was that this notice of retirement was signed by one Chandoo son of Sonu, whom we examined in this Court in pursuance of an order passed by us earlier. That order should be read as part of the present order. As against this the contention of the returned candidate was that the notice of retirement was in fact signed by Chandoo son of Sahadeo and was presented by him in person to the Assistant Returning Officer who accepted it.

We may point out that earlier on 27-2-1957 Chakrapani Shukla had filed an application Ex. P-11 before the Assistant Returning Officer stating that he had definitely learnt that Chandoo son of Sahadeo had not retired from the contest and that the notice of retirement filed on his behalf was spurious. The returned candidate did not stand by this application and stated when examined before the Tribunal that the allegations there were false and that he was later informed that it was the candidate himself who had signed and presented the notice of retirement.

7. From this account, brief as it is, it appears that a notice of retirement was in fact presented. Whether it was signed by Chandoo son of Sahadeo or by someone else is one of the issues which has to be decided. The other question is about its presentation to the Assistant Returning Officer, and the question involved is whether it was presented by Chandoo son of Sahadeo or somebody personating for him.

Side by side, there is the issue which was sought to be proved viz. whether the notice of retirement was in fact signed by Chandoo son of Sonu and presented by him to the Assistant Returning Officer. These three issues clinch the entire matter, and the decision of the election appeal, and in fact of the petition, depends upon proof on these three aspects of the case. We have, therefore, to consider whether the Tribunal's decision on these three vital issues is correct in all the circumstances of this case.

8. It was contended by Shri Ratan Singh, who appeared on behalf of the respondents in this appeal, that the appellate Court should not lightly interfere with a finding of fact given by a Tribunal which recorded the evidence and which had the chance of observing the demeanour of the witnesses in the witness-box. He pressed upon us the acceptance of the conclusion of fact reached by the Tribunal and stated that if those findings were accepted then there was nothing in the appeal.

The law with regard to the powers of an appellate Court to review the evidence and to reach a conclusion of fact is well settled. It has been laid down by their Lordships of the Privy Council in very clear terms that an appellate Court should be slow to disbelieve evidence accepted by the original Court, which had the chance of recording the evidence and watching the demeanour of witnesses in the box.

All the same, their Lordships have stated that where the inferior Court rejects or accepts the testimony of witnesses, not because it considers the witnesses untrustworthy or untruthful but on an examination of the probabilities involved in the case, the appellate Court is in as good a position as the original Court in assessing the value of the evidence. Reference may be made in this connexion to the decision of their Lordships of the Privy Council in Govind Prasad v. Bala Kunwar, AIR 1934 PC 12. This Court has on many an occasion followed this ruling, and indeed this dictum of their Lordships is reiterated by them in subsequent cases.

9. Bearing in mind the law on the subject that we are not merely to set out our own opinion against the opinion of the trial Court and that we can only examine the evidence in the light of the probabilities if the evidence has been so examined by the inferior Court, we are satisfied that the decision reached by the Tribunal in the case cannot be accepted.

10. The Tribunal in reaching its conclusion apportioned the onus in the following way. It stated that no doubt the burden of proving that the notice of retirement was not signed nor presented by Chandoo the candidate lay upon the election-petitioners. According to the Tribunal, that was discharged, prima facie by Chandoo's denial that the notice ot retirement was signed or presented by him.

The Tribunal then took into consideration the evidence of C. T. Bhanagay (P. W. 12), Hand-Writing Expert, and stated that Chandoo stood corroborated by the evidence of the expert. The Tribunal also noted the fact that Chakrapani Shukla had obtained photographs of all the relevant signatures, both of Chandoo the candidate and Chandoo son of Sonu, and had obtained the opinions of two other handwriting experts. Neither the opinions were tendered in Court nor were the experts examined.

From this the Tribunal came to the conclusion that the petitioners had prima facie established their part of the case, and that the burden lay upon the other side to disprove it. The Tribunal then went on to consider the evidence of the other side, and holding in the light of the probabilities, which it discussed, that that evidence was not acceptable, it came to the conclusion that the notice of retirement was in fact not filed by Chandoo the candidate. In view of this the Tribunal held that the election must be declared void.

11. We have analysed the scheme of the order of the Tribunal merely to show that the decision of the Tribunal did not rest upon the credibility or the trustworthiness of the witnesses or their demeanour in the witness-box, but that it rather rested upon a discussion of their evidence in the light of circumstances and probabilities proved in the case.

Once we reach this conclusion it is obvious enough that this Court can also examine the probabilities to see where the truth lies between two conflicting sets of witnesses such as have been produced in the case. In judging the probabilities we think that enough emphasis has not been placed by the Tribunal upon the conduct of Chandoo which needed to be scrutinized from start to finish to find out whether he regarded himself as a contesting candidate till the end.

No doubt, Chandoo stated in the box that he considered himself as a candidate till the end and was in fact surprised when he found on the date of the poll that his boxes were not placed in the polling booths. He also averred that he was canvassing to the date of election on his own behalf, and the Tribunal seems to have accepted the corroborative evidence on that part of the case. We shall show that the probabilities point quite in a different direction and the evidence is hardly worthy of credence.

12. The first circumstance which Chandoo could have proved was that he had appointed polling agents for the polling centres in the constituency. No evidence was led and no document was summoned from the Returning Officer's office to show that any polling agents had been appointed by Chandoo up to 4-3-1957.

We cannot believe that Chandoo would have omitted this very necessary step in the conduct of elections, and if, he had really appointed his polling agents there was nothing to prevent him from summoning the record from the Returning Officer. No such attempt was made, and in the absence of the slightest hint in his evidence about the appointment of polling agents we are satisfied that he had not appointed any polling agents for himself.

13. This would show that he did not regard himself as a candidate for the seat. If he did, there are other matters on which we would have more evidence. He has not produced any document, manifesto, writing, or communication between the 22nd February and 4th March 1957, which would show that he was contesting as a candidate. This omission on his part, and indeed on the part of his supporter Surya Prasad, seems to show that Chandoo was not in the field, between the 22nd February and 4th March 1957.

Further, there is hardly any evidence about what Chandoo was doing during this period. No doubt, he made a general statement that he was canvassing, but he was unable to give the details of his canvassing. We would have expected Chandoo to have been very clear in his statement regarding whom he approached during this period and whom he asked for votes. There is no evidence to show that he approached any of the headmen of his own community or in fact any voter in any of the villages, nor that he asked them for votes between 22nd February and 4th March 1957.

Lack of evidence on this part of the case is a probability which is very much against his contention. The news of the notice of retirement was published in the local paper 'Mahakoshal' as early as 23rd February 1957. It is surprising that neither Chandoo nor any of the other candidates seems to have taken note of it. The only person who took note of it was Chakrapani Shukla, who, it seems, was wrongly informed that the notice of retirement was a forgery.

During the time that this notice of retirement was questioned (27th February to 4th March) all the officials under the direction of the Election Commission were on the look out for Chandoo. The Election Commission and the Chief Electoral Officer had ordered that the Returning Officer or one of his subordinates should interview Chandoo immediately and should find out from him whether he had actually retired or not. In spite of the fact that the information about the retirement had reached Chandoo's father as early as 1st March 1957 Chandoo remained untraced till he appeared on the 4th March and then he pretended that he did not know anything about this retirement.

It is common knowledge that the news of retirement travels like wild fire, and it is impossible that Chandoo's father and his several brothers would not have immediately contacted Chandoo and informed him of what had happened in his absence. What surprises us still further is that Chandoo appeared only on the polling day to make a statement before the Sub-Divisional Officer, and between 4th March1957 till 7th March 1957, i.e., a day after the counting, he took no steps in the matter.

No doubt, he says that he was terribly disappointed by not being allowed to contest the election and went away a frustrated man; but we think that in view of the fact that the election petition has been fought with such vigour something would have been done by Chandoo if he felt that he was deprived of the chance of standing for this seat. The zest with which the election petition has been filed and conducted is not due to Chandoo so much as due to the other election petitioner Surya Prasad, as we shall show presently.

14. Chandoo claims to have gone to Nagpur to take legal advice. He could not name the lawyer to whom he had gone. He did not know any of the circumstances attending this advice. We quote his own deposition on this part of the case:

''When I got the photographs taken, I had not engaged any pleader. At that time Surya Prasad had come with me. Bansraj had called photographer. Bansraj obtained copies of photographs but I paid for them. I was not given any bill by Bansraj. I had gone to a pleader at Nagpur with the photographs, I do not know the name of pleader- I paid the amount of Rs. 1000/- to him and asked him to make the petition. I had gone with the photographs to pleader whose name I do not know. I had gone to Nagpur only once when I had got the photographs compared as well as got the petition drafted. I was in Nagpur for one day. Manu had gone with me when I had gone to get photographs compared and he was also with me when I had been there to get the petition drafted. I went to only one pleader at Nagpur and gave him Rs. 1000,/- as deposit for security. I had also given him Expenses for the comparison of the photographs. I had asked same pleader to get photographs compared. I had not paid any extra fee for getting the signatures compared.'

He stated further that the expenses for the election petition were common and that though he had met file expenses till he deposed, Surya Prasad was going to meet them thereafter. This will show that the interest in the filing of the election petition was at best divided between Chandoo and Surya Prasad. All these circumstances seem to have escaped the Tribunal when it considered the probabilities.

15. As regards the movements of Chandoo for the purposes of canvassing for votes, we find that Chandoo has not been able to produce more than three witnesses, a circumstance which speaks very much against him. Of these, two of the witnesses arc the other two candidates, who stated that all the candidates were canvassing till the very end on their own behalf. The third witness is a petty vendor of ghee (Indarman P W. 10), who has no fixed shop and who wanders from village to village and place to place selling ghee.

He only deposed that at every one of the market days in the village Chandoo was canvassing for votes. One such market day was the 22nd February, on which day he said Chandoo was at Karhi Mekri market, and that was the day on which the notice of retirement was filed before the Assistant Returning Officer. This evidence is not at all definite because this witness himself had no fixed place of business and his evidence at best was most general.

The other witnesses on this part of the case were Surya Prasad and Ghurahi who were candidates for the election. They also stated that Chandoo and others were canvassing till the very last. Both Surya Prasad and Churahi are interested in seeing the election set aside -- Surya Prasad because he hopes to contest the election again, and Churahi probably because he must have forfeited his deposit. These are very strong circumstances against them and they do not seem to have been taken into account by the Tribunal.

16. We have discussed some of the probabilities of the case which have not been noticed by the Tribunal and we shall now scan the evidence led on behalf of both the sides to show that the evidence of the petitioners is not credible, as has been suggested by the Tribunal.

We only mention these probabilities because we think that the case comes within the ruling of their Lordships of the Privy Council to which we have referred and that we are entitled to interfere, because the credibility of the witnesses has not been decided on their truthfulness as it appeared to the Tribunal but upon a consideration of the probabilities.

17. For the election petitioners 12 witnesses were examined. Of these, two were the petitioners themselves, third was another defeated candidate, and one other was handwriting expert. Leaving aside the evidence of these four witnesses for the time being, we go through the evidence of the witnesses recorded on behalf of the petitioners to see what it tells us. Hakimuddin (P. W. 1) is brought to prove a sale deed (Ex. P-45), which was executed by Chandoo son of Sonu, whose signature on this sale deed was compared with the signature on the notice of retirement.

He has not said anything concerning the retirement of Chandoo the candidate. Churahi (P. W. 2) is one of the candidates, and he was brought only to prove two things (1) that Chandoo the candidate was canvassing till the very last, and (2) that he (the witness) had not received the notice of retirement of Chandoo as required by the rules. We shall deal with his evidence later on. We have said already that his interest is far too deep in the case. The third witness for the petitioner is Pandurang a photographer, who photographed the documents exhibited in the case for comparison of the signatures by the hand-writing expert.

Naturally, there would not be anything in his evidence supporting the petition. The fourth witness is Maganwa, who proved the signature of Chandoo son of Sonu on another sale deed (Ex. P-51). He also does not say anything about the election. The next witness is Surya Prasad (P. W. 5), who, as we have said, was a candidate and to whose testimony we shall come later; but we cannot help saying that his interest in the success of the election petition is also very deep.

The sixth witness is Kashiprasad Daharawal, Presiding Officer at the polling booth in mouza Gourgaon in Bindranawagaon constituency and at the polling booth in village Khilora in Bhatapara constituency in the last election. He only stated that he had received intimation from the Zonal Officer that one of the candidates from the Bhatapara constituency had retired. He was cross-examined with regard to the appointment of polling agents on behalf of Chandoo and he stated:

'I do not remember if there was any polling agent on behalf of Chandoo on that day.'

Beyond this there is nothing in his testimony one way or the other. P. W. 7 is Chandoo himself, and his testimonv, interested as it is, will be examined hereafter. Chandudhar (P. W. 8} is a petition-writer, who had prepared the two sale deeds of Chandoo son of Sonu, which were produced in the case. Curiously enough, he admitted that these sale deeds remained with him and were given by him to Surya Prasad for being produced in this case.

The sale deeds did not belong to the petition-writer, and he had no authority to hand them overto Surya Prasad; yet he did so. It is a moot question whether the signature on these sale deeds was not practised and put on the notice of retirement just to draw a red herring across the trail. However, the evidence does not lend any support to the election petition. P. W. 9 is Bansraj Tiwari.

He comes on the scene on the 7 March and helped in the preparation and the filing of the election petition. He has no knowledge of what took place earlier. P. W. 10 is Indarman, the person; who sells ghee. P. W. 11 is Kejuram who deposes that Chandoo son of Sonu made the signature on the notice of retirement in his presence. We may say at once here that the Election Tribunal has not depended on his testimony at all, and we shall show in the sequel that he is telling lies. P. W. 12 is C. T. Bhanagay, the hand-writing expert,

18. The sum total of the evidence in the case, therefore, is this. Chandoo has gone into the wit-ness box and has denied his signature. Kejuram has been brought to show that the notice of retirement was signed by Chandoo son of Sonu, but Kejuram has been disbelieved. The other two witnesses, viz. Surya Prasad and Churahi, only say this much that they did not receive the notice of retirement of Chandoo and that Chandoo continued canvassing till the very end. The other remaining witness is Indarman, who says that Chandoo was present at a village far away from Raipur on the day when the notice of retirement was filed at Raipur.

The evidence thus was extremely thin, and it is quite obvious on a reading of the order of the Tribunal that it was considerably swayed by the testimony of Shri C. T. Bhanagay, the handwriting expert, on the subject of the authorship of the signature. If we take away Bhanagay as the corroborating witness, then the conclusion that the signature on the notice of retirement was not that of Chandoo, the candidate, remains supported only on the evidence of Chandoo himself.

19. Now, we begin with Shri Bhanagay. No doubt, Chakrapani Shukla had also consulted two experts, but it is wrong to draw a conclusion that those experts must have given an opinion contrary to his case. Nobody put a question to him why he did not cite his hand-writing experts. It may be that those hand-writing experts were not so definite in their opinion or did not have any on the subject.

It is well known that hand-writing experts need plenty of comparative material before they can reach I a conclusion. Indeed, Shri Bhanagay himself stated in his deposition that for deposing that Chandoo son of Sonu had signed the notice of retirement he needed more signatures than the ones which were available to him on the sale deeds. He admitted that he took only two of the signatures on the two sale deeds and did not compare the remaining signatures on the same sale deeds.

The letters in the signature 'Chandoo' are three only with a matra, and there is only one more 'T and two dots to aid identification of the hand-writing. In view of inadequate comparative material it wa9 very difficult indeed for any handwriting expert to reach a conclusion except that pictorially the writings resemble very much. Indeed, the cross-examination of the handwriting expert shows the similarities between the handwriting of Chandoo the candidate and his signature on the notice of retirement, which of course have been whittled down by the expert.

We had the opportunity of comparing these signatures with all the signatures that are in the case. We had also a further advantage, which the Tribunal did not have, because we had Chandoo son of Sonu before us, and we made him write 5 signatures in our presence. The handwriting there wasmaterially different. It may be that Chandoo son of Sonu may have purposely written a different hand, but he did not appear to us to be instructed enough to do that.

He looked a simple villager, not capable of disguising his hand-writing. We felt on seeing those signatures that whatever may be said about the authorship of the signature on the notice of retirement it could not be said that Chandoo the witness before us was the writer of that signature. The evidence thus is supported by the uncertain evidence of an expert.

20. We do not doubt the capabilities of Shri Bhanagay, but we question the opinion which he has given on the ground that he had not adequate material on which to reach a conclusion. It is so easy to see differences and overlook the similarities and vice versa. The similarities are not stressed at all when we want to prove that the disputed signature is not of the person alleged to be the author.

This is exactly what has happened. Shri Bhanagay did not in his deposition show that he had examined the angles or pen pressures in the various letters. There was no question put to him to show that be had compared the signatures with photographs enlarged to equal dimensions. Indeed, the photographs were taken by a photographer and not by a hand-writing expert.

It is common knowledge that signatures have to be magnified to an equal extent, superimposed, and lines drawn to find out the angles, to measure the lengths of the various strokes, to find out their taperings and so on. None of these things is to be found either in the report or the deposition.

21. In our opinion, therefore, the evidence of the expert was not decisive of the matter, as has been accepted by the Tribunal. We have compared the signatures and taken into account the evidence of Shri Bhanagay, and we feel that apart from a general similarity, which similarity also exists between the writing of Chandoo the candidate and the disputed signature, there is nothing more.

It is common knowledge that Hindi letters are sometimes formed by persons who are only slightly literate in much the same way and some pictorial resemblance often results. Indeed, we go further and say that the sale deeds being with the persons who are uow challenging the election, it may be possible for a person to copy pictorially the effect of the signatures on those sale deeds and reproduce them on the notice of retirement after practice.

We do not give that as a conclusion, but we do not rule out the possibility. It may be that a person wanting to retire may still want to create trouble for the other candidates and may use some such device. Things like that are known to have happened in elections and will continue to happen.

We, however, feel that the evidence of Shri Bhanagay cannot be taken into account in the way in wbicb it has been by the Tribunal. On a comparison of the handwritings we do not feel impressed by the evidence, and we do not think that we can reach any conclusion that it was not Chandoo the candidate who had made the signature on the notice of retirement.

22. This leaves us with the bare denial of Chandoo and takes us at once to the examination of his conduct, to which we have referred earlier, and it takes us to an examination of the evidence which has been tendered in order to refute the contention of Chandoo that he did not sign the notice of retirement. Here, the most material evidence of course comes from the Assistant Returning Officer Shri Mahajan.

Shri Mahajan received this form (of retirement) and endorsed on it 'Presented by Chandoo in person and signed it on the very day. Immediately afterwards a notice appeared in the 'Mahakoshal' that Chandu had retired, and it appears therefore that Shri Mahajan had in fact received this notice of retirement on the 22nd February, and indeed it is nobody's case that it was not presented on that day.

Shri Mahajan identified Chandoo the candidate as the person who had delivered that notice to him. It was contended before us and very vigorously that Shri Mahajan was trying to save his own skin after having accepted the notice of retirement from Chandoo without verifying about his identity.

Shri Mahajan did state that he had questioned a person who looked respectable and he had identified Chandoo to him. Shri Mahajan could not give the details of the person and had made no note about it, and it seems that this omission on his part has resulted in an unfavourable opinion about his deposition being formed by the Tribunal. The same unfavorable aspect was presented to us in the argument. We have now to see whether Mahajan's testimony can be accepted or not.

23. Shri Mahajan stated quite clearly in the witness box that when Chandoo the candidate filed his nomination paper he (the witness) had seen him but did not remember his face. Later, when Chandoo the candidate gave him the notice of retirement he accepted it and saw him for four or five minutes.

Later, on 7th March Chandoo the candidate appeared before him and he (the witness) then asked him how he was alleging that he had not presented the notice of retirement when he himself had presented it to him (the witness). The witness recognized him as the person who had delivered the notice of retirement to him.

It may be noted that before the Tribunal Chandoo made a dramatic appearance in the company of four or five persons so as to create confusion in identification by Sbri Mahajan, but Shri Mahajan was able to pick him out from amongst those people. Later on, in this Court also, when we examined Shri Mahajan, Chandoo was seated right at the back in the midst of three dozen persons, and Shri Mahajan had no difficulty in picking him out.

We had the opportunity of asking Shri Mahajan to identify between the two Chandoos, because Chandoo son of Sonu was also present before us on that day. Shri Mahajan said that there was a striking difference between them, and he was quite definite that it was not Chandoo son of Sonu who had presented the document to him. We may note here that Chandoo the candidate is a tall person. Chandoo son of Sonu is a short man.

He looks much older, has grey hair which are unkempt. He was very poorly dressed as compared with Chandoo the candidate; and Chandoo the candidate has a striking appearance which Chandoo son of Sonu does not possess. Indeed, they are so unlike that it was impossible that Shri Mahajan could have mistaken one for the other and we are quite satisfied that Shri Mahajan who had no axe to grind and probably no skin to save, was perfectly correct in giving his deposition as the truth appeared to him.

He, no doubt, safeguarded himself by making it quite clear that he might be mistaken, but he still asserted that to the best of his recollection it was Chandoo the candidate who had presented the notice of retirement to him. We watched Shri Mahajan most intently while he was giving his evidence, and we felt that there was no guile about him and he was deposing in an honest and open-manner, andwe were completely impressed by his testimony given before us.

24. It will also appear from the other evidence tendered in the case that the matter was not kept a secret. If Chandoo son of Sonu was taken to personate for Chandoo the candidate there would be no need to go through the antics which happened in the case. The notice of retirement was not written by one person. It was begun by one Jha (R. W. 4), was completed by another person, and was finally signed by Chandoo.

Jha stated that one Rajnarain (R. W. 9) came in the company of a man who was introduced as Chandoo, and Jha was asked to write out the notice of retirement. He began writing the superscription, when his superior officer called him. When he came back ten minutes later these persons had gone away. Nobody attempted to confront him with Chandoo the candidate, and it seems rather surprising that none of the parties took the risk of bringing the candidates before him for identification.

The net result was that the document was partly executed by Jha. Later on, Rajnarain says he also left Chandoo the candidate to his own devices and went away to take tea and pan in a hotel next door. When he came out of the hotel ten minutes later, he found Chandoo the candidate with the form and he showed him the office of Shri Mahajan. Chandoo then went in and presented the form.

Rajnarain does not admit that he saw the signature being made. Further, he does not admit that he had any talk with Mahajan, nor that he identified the candidate. Shri Mahajan stated that he spoke to one man, and the argument was that it must be Rajnarain, and that therefore there was a vital contradiction between the two. It may be that Rajnarain is trying to minimize his part, because he does not know what the result of the case might be and where he might land himself.

He, therefore, wants to keep his share in the transaction as small as possible. However, it is obvious that the presentation of the form to Shri Mahajan is corroborated by Rajnarain and Rajnarain if he was not present there would not have known who the writer of the opening part of the notice of retirement was. The fact that the authorship of the opening portion of the notice of retirement is proved by Rajnarain shows that be had something to do with this notice of retirement.

25. It was contended before us that Rajuarain had lost his father on 12th February and was in mourn ning and that he should have been in U. P. performing the obsequies and not in Raipur on Bhatapara dealing with Chandoo the candidate. Rajnarain stated that he did not go to U.P. at all and that the obsequies were performed in U. P. and not in Raipur or in Rhatapara. No Question was put to himf why he did not go to attend the obsequies.

His relations with his father were not unravelled in the case, and we do not know the reason why he abstained from going to the obsequies and to attend the funeral. The fact remains, however, that he was in Raipur, because he stated that he had gone to see a pleader in connexion with an application which he had made to the Deputy Commissioner and that he was attending to that business when he came across Chandoo and at the latter's instance took him to Jha to fill in the notice of retirement.

We do not sec how this evidence can he saidto be artificial or false. It has the stamp of truth,because it is corroborated at both ends: at one byJha, who admits, the authorship of the opening portion of the notice of retirement, and at the otherby Shri Mahajan who states that Chandoo the candidate had been to him.

26. When we come to the time factor, it is stated that there is vital difference between Shri Mahajan and Kajnarain. According to Rajnarain, it was 2 or 2.30 p.m. when the notice of retirement was presented to Shri Mahajan, whereas Shri Mahajan gave the time as between 12 noon and 1 p. m. It is obvious that after a lapse of 7 or 8 months such confusion is likely, and in this one or the other or both might be in error. We do not think that much turns on this.

Similarly, it is to be noticed that between the time Chandoo left Jha and presented the document to Shri Mahajan not more than ten minutes elapsed. It is inconceivable that during this time somebodyelse was substituted for Chandoo the candidate. It, therefore, appears that either the whole of the transaction was gone through as a mimicry with an absolute stranger or that there was a substitution of one man for another within those ten minutes. We think that both these suggestions are entirely unacceptable in view of the testimony of Shri Mahajan and the probabilities.

27. Further, there is the evidence of Vasant Kumar Tiwari (R. W. 8), who is a reporter of the 'Mahakoshal' and who flashed the news of Chandoo's retirement the same day. The witness claims that he talked to Chandoo and asked him the reason, and Chandoo gave him the reasons which figure in the news item issued by him. All this evidence, therefore, clearly shows that Chandoo the candidate was not present at the village where he had met the ghee-seller, but was present in Raipur.

Shri Mahajan's identification certainly is of greater value than the testimony of a petty ghee merchant who goes about selling ghee from village to village and does not even own a shop. Official acts must ordinarily be taken to be correctly performed, and there is nothing in Shri Mahajan's testimony to show that it was not Chandoo the candidate who had presented the notice of retirement.

28. Taking, therefore, the probabilities of the case that Chandoo had not appointed election agents, that he was not communicated the news of the withdrawal by his father, brother, or others, and that Shri Mahajan identified him on two separateoccasions as the person who brought the document before him and the evidence of the other witnesses in whose presence at any rate a part of the document was written, we think that the evidence on behalf of the petitioners could not be accepted,consisting as it did of only his bare denial.

29. We shall now analyse, for what it is worth, the evidence of the three witnesses whom we reserved for separate treatment. The first is Churahi (P. W.2). He was a candidate who, as we have shown, has considerable interest inasmuch as his security is involved. He only deposed that Chandoo, Biswa and Mannoo alias Surya Prasad were all canvassing till the date of the election on their own behalf individually. He also stated that he did not receive the notice of retirement in relation to Chandoo from the Returning Officer.

30. The evidence is exceedingly cryptic. It is incapable of being tested because there is only a general statement about canvassing. There is nothing to show where, when and how he came acrossChandoo and whether he had any conversation with him or had merely heard about it. The evidence thus faHs far short of the necessary proof required to establish the conduct of Chandoo in continuing to canvass even after 22nd February. He admitted that he himself did not see Chandoo canvassing on his own behalf in any part of constituency.

Unless chance brought these two together, what he learnt about Chandoo's canvassing wouldonly be hearsay and not direct testimony. There is nothing in his deposition to show that he came across Chandoo canvassing in any area or saw him canvassing between the 22nd February and the 4th March. His interest in the issue is patent enough, and in view of this we do not think that he can be relied upon.

31. Surya Prasad (P. W. 5), the next witness, is even more vitally interested. He has joined Chandoo in the election petition and we have no hesitation in saying that this election petition has been filed more for the benefit of Surya Prasad than of Chandoo. Surya Prasad has taken a great deal of interest in this matter. He took Chandoo all the way to Nagpur where, if Chandoo had been left to himself, he would not have gone.

Chandoo himself did not seem to be interested in the issue of the election because he stated that after his deposition it would be Surya Prasad who would have to meet the expenses of the election petition. Since Chandoo did not even remember the name of the lawyer to whom he had gone, it is manifest that the operator behind the scene was Surya Prasad, who had clearly shown his interest in the matter and we must proceed to the examination of his evidence with a considerable amount of caution.

32. The only evidence that Surya Prasad has given is this : that all the other candidates including himself were contesting the election till the date of polling. Chandoo, the petitioner, was also contesting the election till the date of polling. This question was objected to because it was a leading question. But it was allowed because the learned Tribunal felt that a leading question could be allowed.

We do not know how this standard came to be exercised. We feel that a leading question could not have been allowed in the examination-in-chief. All the same, the reply given only shows that Chandoo was contesting the election and had not retired -- a fact which would not be within the knowledge of Surya Prasad unless he got it from Chandoo.

33. Surya Prasad himself does not speak of any meeting with Chandoo dunng his tours and he did not depose when and where he verified this fact from Chandoo. The evidence suffers from lack of definiteness in much the same way as that of P. W. 2 and the interest is even greater.

34. The only evidence which Surya Prasad has further given is that on the day previous to the date of polling, Chandoo enquired from the Presiding Officer as to why his box was not placed. In our opinion, this enquiry was a make-believe by Chandoo because by that time the intention was to call the election into dispute if the results went against Surya Prasad and in favour of Chakrapani Shukla.

35. It is significant that Surya Prasad admitted that prior to 3rd March 1957 he had no intimation that Chandoo had retired from the contest. Of course, Chandoo could disappear after giving the notice of retirement to the Returning Officer. Surya Prasad says that a copy of the notice of retirement was not sent to him.

He does not, however, say that he met Chandoo and found out from him anything. Anything which he does not find out from Chandoo who quietly gave his notice of retirement and as quietly went out of the struggle, would be merely hearsay and (the source of Surya Prasad's knowledge is not disclosed by him.

In these circumstances, it becomes very difficult to rely upon his mere statement that Chandoo, the candidate, was canvassing actively for votes right up to 3rd March 1957. Indeed, he has not been even so definite in his statement. All that is stated is that Chandoo was 'contesting' the election till the very last day.

36. We cannot forbear from making one further remark here, and it is that it was Surya Prasad who had obtained two sale deeds with regard to Chandoo, son of Sonu, from the petitioner and Brought them into the case for comparison. How Surya Prasad obtained those documents which did not belong to the petitioners is a mystery and we think that a great deal of suspicion lurks there.

37. Surya Prasad also admitted that he and Chandoo, the candidate, had not connection or concern with each other regarding the election till 7 March 1957. This, of course, was in answer to the allegation that immediately after his retirement Chandoo started canvassing for the P. S. P. candidate. A great deal of Surya Prasad's testimony was wrongly admitted being entirely hearsay and on some matters hearsay of hearsay. We quote an instance:

'The person? who informed me about the retirejnent notice having been signed by Chandoo ofBalodabazar have been cited as witnesses by me.They also said that they had heard about it.'

Such kind of evidence should have been excludedbeing not only hearsay but hearsay of hearsay. Itcould not possible be read and it is this evidencewhich seems to have coloured the decision of theTribunal because it had before it such inadmissibleevidence.

38. The third witness is Kejuram (P. W. 11). Kejuram's testimony is really remarkable. According to him, the disputed document was signed in his presence by Chandoo, son of Sonu. We now examine his evidence. He says that lie had gone to consult a lawyer about some matter concerning his daughter. The question which he had to ask the lawyer was whether his

'daughter would get the property from the husband of her mother-in-law who had churied that man.'

In going about this business he has stated the following fact:

'I do not know the name of the pleader to whom I went. I then found a lawyer but I do not know his name. I cannot say whether the pleader was a Hindu, Muslim or any other caste. I cannot say if he was a pleader, petition writer or a pleader's clerk. I had not brought any paper to show to the pleader.'

39. So much about his own business. Now about the business of others, let us see what he had to say. According to him, Chandoo, son of Sonu, was seen by him in the company of one Umashankar Bajpai alias Guljari Maharaj and Baba petition-writer at the Court. He says that when he went to the District Court, he found Guljari and Baba petition-writer sitting in the verandah of the District Court. The third man was also with them. That third man apparently was Chandoo, son of Sonu. Now we quote the words of the witness:

'I found the third man writing his name as 'Chandoo.' I do not know who had written the full paper but only saw the signature being put there. The paper which was being signed had no writing with hand anywhere else. The paper was printed. The side which I saw was printed. I cannot say whether the other side was printed or not. I saw him signing at one place only. I cannot say whether he was putting his signature on the top of the paper or at its middle or at its bottom. I asked Guljari Maharaj that I had to consult him on a certain matter and he told me that I should meet him at Baloda Bazar as he was busy at that time. I did not go to Gulzari Maharaj after that date. Now says: that I had a talk with Bawa Maharaj who told me to come to Baloda Bazar. I had no talk with Guljari Maharaj.'

40. The evidence, therefore, disclosed that he managed to reach at the vital moment when Chandoo, son of Sonu, just signed the notice. If the evidence on the side of Chakrapani Shukla may be said to be artificial, we think this was doubly artificial. We do not believe this witness when he says that he had seen the author of that document. Needless to say, as we have already pointed out, that the learned Tribunal also attached no importance to his evidence.

When we examine the evidence of Surya Prasad, we find that the source of the information which he received on hearsay evidence, was Kejuram. If that be the case, it seems difficult how that evidence can at all be accepted because if the author of the report is found to be false, repetition of that report to others would not add to its weight. And yet the learned Tribunal found against Chakrapani Shukla on the evidence of Surya Prasad.

41. In our opinion, the evidence of those three witnesses which we have analysed fully needs to be rejected.

42. The conclusion, therefore, is that Chandoo, the candidate, handed over the document signifying his intention to retire from the contest to Shri Maha-jan. Shri Mahajan identifies him as the person who handed over the document. As there is no reason to doubt the evidence of Shri Mahajan on the identity of the person who filed the notice of retirement, the presumption is that he was also its author.

This presumption is strengthened by the fact that the signature of Chandoo, the candidate, resembles materially the signature made on the document. The evidence with regard to the authorship of Chandoo, son of Sonu, fails miserably and the signatures of Chandoo, son of Sonu, made in our presence do not resemble the signature on the notice of retirement at all.

There are certain documents on which the signature of Chandoo, son of Sonu, do resemble to a certain extent the signature made on the notice of retirement. These documents inexplicably came into the hands of Surya Prasad through the agency of a petition-writer. Anyone in possession of these signatures could copy them with a little practice to draw a red herring across the trail.

We think that the burden, which was on the election petitioners to show that the notice of retirement was not valid, was not discharged by them, and there was no case to go to the other side. Even if there was, the evidence of Shri Mahajan and the evidence of the witnesses who had seen the writing of a portion of the notice of retirement and in whose presence it was written, clearly demonstrate that Chandoo, the candidate, was its author.

The conduct of Chandoo, the candidate, and the probabilities of the case completely establish that Chandoo, the candidate, disappeared after the filing of this notice of retirement, made no preparation for his election such as making the appointment of polling agents etc., and the only evidence led is of general type that he was canvassing on his own behalf during the interval -- an evidence which does not bear any scrutiny,

43. In this connexion, there is much doubt whether Chandoo was a genuine candidate for election at all. He did not even know who had filled in his nomination form or who had proposed his candidature. In the sequence of the events that followed, it appears that he was only a dummy candidate who was wishing to retire at the instance of any one who was not confident of his success and to do so in a manner such as could be used to challenge the result of the election in case it went against him.

That man evidently was not Chakrapani Shukia, who was anxious that he should contest the election. It is easy to understand that that person was me opposing candidate who lost heavily and is contesting the result of the election.

44. In the result, we think that the finding of the Tribunal on this part of the case was erroneous and deserves to be set aside. It deserves to be set aside not only because we reach a different conclusion about the credibility of the witnesses but also because we reach a different conclusion about the acceptance of that evidence, regard being had to the probabilities which have been wrongly and inaccurately assessed by the learned Tribunal. In doing so, we are in the same position in which the Tribunal was, and we are entitled to act in the way we are doing.

45. This brings us to the question whether copies of the notice of retirement were sent out or not. There is no doubt that the fact of retirement was published. It was published on the 23rd and the 26th at all the leading offices and was affixed to the notice board of the Returning Officer on 23rd February. It was also published in the Gazette on 14th March 1957. Shri Mahajan stated that copies of the notice of retirement were sent out to all the candidates.

Unfortunately, a record was not maintained and he could not find an entry in the Dak Book. Yet it is clear enough that the notice of retirement in fact reached the father of Chandoo and all the presiding officers. We also think, regard being had to be presumption which we are entitled to draw under Section 114 of the Indian Evidence Act, that they must have been sent to the other candidates as well. These candidates were in the interior and it is likely that the notices might not have reached them.

However, we do not expect them to say that they got the notice, even if they did so, because they would be shrewd enough not to make any such admission. We, therefore, attach very little importance to this part of the case; and it is not an irregularity which has materially affected the result of the election in so far as the returned candidate was concerned.

46. The next question which was debated before us was that the notice of retirement was not presented in accordance with Section 55-A(2) of the Representation of the People Act. The notice of retirement was lodged on 22 February and the poll was to be on 4th March. It is contended that it was later than ten days nrior to the date of the poll. In this matter the question is whether both the end days should be excluded or only one.

It was contended on the authority of a decision of the Rajasthan High Court in Anokhmal v. Chief Panchayat Officer AIR 1557 Raj 388 that both the end days should be omitted. On the other hand, reference was made by the learned counsel for the appellant to a decision of the Supreme Court in Harinder Singh v. Karnail Singh (S) AIR 1957 SC 271. We think that the learned Tribunal on this part of the case has gone wrong in thinking that what was meant was that 10 clear days should elapse between the making of the notice and the date of the poll.

At page 351 of Maxwell on Interpretation of Statutes, Tenth Edition, it has been laid down that if the words are that so many 'clear days', or so many days 'at least', are given to do an act, or 'not less than' so many days are to intervene, both the terminal days are excluded from the computation. But, 'in other cases', the learned author says, 'the rule is to exclude the first include the last day.'

47. In the present case, the exclusion will be of the date of the poll, i.e., 4th March, because thestatute has put 'not later than ten days prior to the date... fixed for the poll'. So, the date of the poll will have to be excluded, and ten days will have to be counted backwards from 3rd March (inclusive). It will thus be found that the notice of retirement was filed on the tenth day. The Tribunal reasoned that 9 1/2 days are not equal to ten days and, therefore, the notice of retirement was not tendered within time.

This would be the result if the notice was required to be tendered ten 'clear' days before the date of the poll. As there is no such statutory provision, the notice tendered on the tenth day prior to the date of the poll would be deemed to be tendered not later than ten days prior to that date, which is all that the statute requires. Part of a day is not taken note of in computing time. See Maxwell on Interpretation of Statutes in the same chapter. Therefore, differing from the Tribunal we hold that Chandoo had retired within the period allowed by law.

48. There was thus no breach of the rules sufficient to take the matter into Section 100(1)(d)(iv) of the Act. In any case, the result of the election, in so far as the returned candidate is concerned, was not materially affected,

49. The result, therefore, is that we hold that Chandoo the candidate had validly retired from the contest and there was no need, therefore, to put his box bearing the cycle symbol at the polling booths. That is the main part of the case and that was the only case argued before us.

50. In view of our decision on this part of the case and the further decision that no breach of the rules had taken place and that if any breach had taken place it did not materially affect the result of the election in so far as the returned candidate Chakrapani Shukia is concerned, we are of opinion that the decision of the Tribunal was erroneous and deserves to be set aside.

51. We accordingly reverse the decision of the Tribunal and dismiss the election petition with costs throughout on Chandoo and Surya Prasad, to be shared by them equally. Counsel's fee in this Court shall be Rs. 150/-. The appeal is allowed with costs as indicated. The amount of the security shall be returned to the appellant.

52. Before we sign our order, we wish to record our reasons why we examined Shri Mahajan as a Court witness in the appeal before us.

53. We have given reasons for examining Chandoo, son of Sonu, who was summoned by both sides but was given up. After recording his testimony, we thought it advisable to confront Chandoo, son or Sonu, with Shri Mahajan to remove any doubt as to the identity of the person who had presented the notice of retirement to him. We confronted him with the two Chandoos to see which it was who had given the notice of retirement.

54. We did not examine Shri Mabajan at length but only as to the identity of the person who had presented the notice of retirement to him. We also confronted Shri Mahajan with Umashankar Bajpai to find out whether the latter was the person who had identified Chandoo before him. This was necessary, in our opinion, for a complete adjudication of all the dispute in the case and without this evidence there would have been difficulty in reaching a definite conclusion.

55. We record these reasons and they shall beread as part of the order which we are signing today.